Government leaves status of Section 377 on the Supreme Court

Mehta warned SC against declaring that sexual orientation was a part of a person’s fundamental right.

NEW DELHI: The Centre has refused to take a definitive position on constitutional validity of Section 377 of IPC, which criminalises homosexual activities, leaving it to the wisdom of Supreme Court judges.

ASG Tushar Mehta on Wednesday, however, warned SC against declaring that sexual orientation was a part of a person’s fundamental right, insisting that it would open the doors for incest, bestiality, sadomasochism and other such acts of sexual perversion.

Tushar Mehta reminded the court of provisions in the Hindu Marriage Act disallowing ‘sapinda’ marriages in this context. CJI Dipak Misra — heading a fivejudge bench hearing a slew of petitions seeking to free the LGBT (lesbian, gay, bisexual and transgender) community from living under the shadow of Section 377 — was quick to contest his stand.

There was no question of allowing anything non-consensual or anything involving minors as they can’t give consent, the CJI said. “Where does incest come in? Consenting adults cannot be held criminally liable for any act,” he said.

“They (LGBTs) will be free to work, declare (their status)…but what other civil rights will follow will be part of a future lis (legal cause of action),” Misra said, adding issues such as adoption, maintenance, right to cohabit, and maintenance can be argued later.

Justice DY Chandrachud said the court was only concerned with a relationship between two consenting adults.